Access to property is very important for religious organizations as it allows congregants to have a regular place to meet. But property does not come free of restrictions on use; governments often set policies that can facilitate or hinder how a religious group uses property. We discuss four court cases pertaining to property access and use with Jordan Lorence, senior counsel and senior-vice-president of the Office of Strategic Initiatives for the Alliance Defending Freedom. Our survey of these court cases includes issues pertaining to whether congregations can gain access to public property (most notably public schools), whether or not churches are tax exempt on their property, the type of signage available to religious organizations, and minimum acreage requirements imposed on houses of worship.

Our conversation begins with a bit of chit-chat about Minnesota, Tonka Toys, and what it is like to argue cases before the US Supreme Court. We then dive into our main topic, which is the issue of church property. Jordan reveals that he became involved in this area of litigation simply based upon the number of court cases that have been popping up over the past several decades. He mentions that many of these cases are prompted both by “equal access” concerns (i.e., can a religious group lay claim on property that is similar to a secular group’s claim) and the tax-exempt status of faith-based organizations. Not surprisingly, if a confessional group would like to occupy property and that property is tax exempt, local governments might be reluctant to allow these groups to use that space over a concern of foregone revenue.

The first case we examine in detail pertains to whether or not churches (and synagogues, mosques, etc.) can rent space in public schools during the weekend to hold worship services. The specific case where this is being challenged in the Bronx Household of Faith v Board of Education of the City of New York. Jordan details the history of this church and the conflict surrounding whether or not it can gain access to this public space, a conflict that dates back to the mid-1990s. Jordan notes that of the 50 largest school districts in the U.S., this is the only place where churches are not allowed to rent public school space for worship services. What constitutes “worship services” (as compared to a Bible study group) is one of the definitional issues that we wrestle with. Mr. Lorence reviews the arguments on both sides of the case and talks about where this litigation currently sits following a 2-1 decision against Bronx Household in the 2nd Circuit in early April.

Our conversation moves from New York City to Arizona, a place where one might think religious property rights issues are not as contentious. Nonetheless, we talk about two current cases winding their way through the court system. The first case, Church of the Isaiah 58 Project of Arizona v La Paz County involves a lien placed upon a small church for not paying $50,000 in back taxes. The church claims it has tax exempt status, but the county is requiring proof from the I.R.S. although the state of Arizona has granted the organization such status albeit not for all the year’s of its existence. This generates an interesting conversation about the role that taxes play in determining how local governments handle religious property claims. The second case from Arizona does not deal with real estate per se, but rather the regulations placed on church signage. The issue in Reed v Town of Gilbert centers around how churches face greater restriction on the size of, and duration to which, signs advertising worship are displayed. While the church organization has lost at the lower court level, this is a case that has garnered a great deal of attention from some big name legal scholars and is awaiting a set of decisions from the US Supreme Court on whether (and how) it will proceed.

Our final case involves a rather interesting twist on church property claims. In New Generation Christian Church v Rockdale County, instead of limiting the maximum size of church property, the local government is requiring a small congregation to purchase a minimum of three acres for its activities even though the congregation does not need this much land. During this portion of the conversation, and echoing some earlier discussion, we reflect upon how the definition of “church” or “worship service” can play a large role in determining how religious groups fit with various regulations. We conclude with Jordan’s thoughts on whether the legal environment involving church property has become better or worse for churches over the years. Where equal access cases involving the use of public space have tilted in favor of religious use over the past few decades, issues involving the actual real estate owned by religious organizations has not. Jordan finishes up with a bit of typical Minnesota commentary. Recorded: April 30,2014.